The Application of Global Legal Accountability is No Open and Shut Case

In 2001, outside Freetown in Sierra Leone, some colleagues and I spoke at a demobilisation camp about the soon-to-be-established Special Court for Sierra Leone. As clichéd as it sounds, I remember the eyes of those assembled as being cold and dead, behind which nothing seemed to penetrate. But something obviously did - because at the break several men scuttled off to their commanders, stationed not far outside the camp.
The commanders promptly let it be known that there would be no more demobilisation and disarmament if there were any further talk of prosecutions. We were unceremoniously ejected from the camp by a Nigerian contingent of United Nations peacekeepers.

A few weeks later, in the towns of Bo and Kenema, to which peace had only recently come, we attempted to give the same talk to several local communities. Their agitation was much more evident. "Why upset a still-fragile peace?" "The rebels will simply take up their weapons once more." And then: "If you're so concerned for justice, what about schools, and roads, and clean-drinking water and healthcare?"

As it happens, the Special Court and prosecutions did go ahead and, as yet, there has been no return to warfare - but only the misinformed could believe that an insistence on international accountability and justice alone secured ultimate peace.
This peace/justice dynamic - its interrelationship, tension, balance - has been the central theme of what is called "transitional justice" from the time the field first excited interest. That law is informed by political considerations is not a new insight, but transitional justice does throw the question into sharper relief.

This month, the US Supreme Court upheld a decision (albeit on a technicality) allowing companies to be sued for aiding and abetting in the commission of the crime of apartheid - a crime against humanity, but nonetheless a crime that happened far outside the US. In South Africa, the Southern Africa Litigation Centre has asked the National Prosecuting Authority to investigate, with a view to prosecuting, crimes against humanity committed in Zimbabwe - beyond South Africa's borders.
These are only two examples of what has become an increasing trend: that courts far from the places where the crimes were committed are being asked to secure accountability and redress.

In the May issue of Vanity Fair, eminent international lawyer Philippe Sands - who acted in the court case brought to secure the arrest of General Augusto Pinochet in London for extradition to Spain in order to stand trial for crimes committed in Chile - compellingly argues that senior US government lawyers can and should be prosecuted for war crimes for acts of torture committed in Guantanamo. "For some of those involved in the Guantanamo decisions, prudence may well dictate a more cautious approach to international travel," he writes. "And for some the future may hold a tap on the shoulder."

This use of national courts and national legal systems to enforce international law seems a variation of a development at the close of the millennium, which saw the proliferation of international criminal tribunals, first for the former Yugoslavia, then for Rwanda, then hybrid courts for Sierra Leone and Cambodia and, most radically, the permanent International Criminal Court.
All of these institutions are premised on the principle of universal jurisdiction - the same principle that allows for prosecutions for international crimes, the most serious human rights crimes, before national courts.

And so it seems a little odd that the most forceful and scathing critique of universal jurisdiction of late has come not from the likes of Henry Kissinger, although he has certainly made his objections known, but from the Rwandan government - a government that asked the UN to set up an international criminal tribunal to prosecute those responsible for the 1994 genocide.
The statement delivered by the Rwandan government to an April 2008 meeting of the African Union ministers of Justice and attorneys general would have been extraordinary for its title alone: "The Issue of 'Universal Jurisdiction' Where Foreign Judges Allocate Themselves the Duty and Responsibility to Take Over, Control and Dominate Judicial Process in Independent Sovereign States for the Purpose of Political Gain." But the statement was more remarkable still because the accusation that "foreign judges seek to recolonise Africa through a form of 'judicial coup d'etat' under the guise of 'judicial independence' and 'universal jurisdiction' " resulted in a declaration of the AU meeting to the effect that "the abuse of the principle of 'universal jurisdiction' by some non-African states is a great affront to the sovereignty of states".
Rwanda is particularly incensed by the indictments issued by Spanish and French judges of key figures in what used to be called the Rwandese Patriotic Army, now the Rwanda Defence Forces.

Uganda's President Yoweri Museveni is also piqued that the principles of international justice aren't quite the expedient political tools he had hoped they would be. Soon after the international criminal court was established, he appealed to it to investigate the crimes committed by the Lord's Resistance Army, and indictments were issued against LRA leader Joseph Kony and four of his commanders in 2005. But in the face of domestic pressure and the LRA's refusal to stop fighting unless the indictments were withdrawn, Museveni recently indicated that doing so should be within his government's power to demand - because it had requested the court to investigate in the first place.

At best, the Rwandan and Ugandan governments fundamentally misunderstand the tenets of basic legal process. At worst, they opportunistically seek to uphold its application only in support of their own interests. But specious and opportunistic though their complaints may be, they do nonetheless raise some interesting questions .
It might seem proper for the many organisations concerned about the frightening escalation of atrocities in Zimbabwe to call for prosecutions in South Africa for crimes against humanity committed there, when Zimbabwean courts offer no real prospect of accountability and redress.
But would it still seem appropriate should there be a transition and Zimbabwean processes are in place? Would it have been appropriate had a British or French court, for instance, sought to indict those given amnesty under South Africa's Truth and Reconciliation process? Or even those leaders, instrumental in our transition, previously party to some of the worst abuses of apartheid, who had never deigned to apply for amnesty?

That courts the world over have thus far deferred to South Africa's decision to forego systematic prosecutions suggests that sovereignty still exercises some weight in the application of international justice principles. And if sovereignty is a reality with which we must contend - albeit a sovereignty that compels respect only for the democratic decisions of democratically elected governments - so too is the selectivity in the application of international justice implicitly urged by Rwanda and Uganda, and at which we may balk.
After all, as positive a development as the recent US ruling is regarding apartheid and the Alien Tort Claims Act, it hardly seems consistent that the direct perpetrators of the crime of apartheid - those who instigated and authorised the policy, those who did the killing, maiming and torturing - have, by and large, not been subjected to any punitive measures while corporations, which had a much less direct hand in the commission of these crimes, now look more likely to pay a price.

At present Africa has the largest number of ratifications of the Rome Statute for the International Criminal Court, and right now all situations under investigation at the International Criminal Court have occurred in Africa. Because it will matter most here, African states have to negotiate and consider issues like sovereignty and selectivity - factors that complicate the application of international justice principles in ways not suggested by a simple peace/justice dichotomy - with a deftness and nuance that submissions such as the Rwandan government's and the AU declaration don't currently allow.

About the Author: Fritz is Director of the Southern Africa Litigation Centre

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